Report No. 69
IV. Weakness
26.26. Introductory.-
When a statement made by a person out of court is admitted, the nominal witness is the person reporting the statement; but the real witness is the person whose statement is so reported.
26.27. This point has been lucidly illustrated by Morgan.1 Let us assume that the utterance of a witness, as understood by the Trier of fact is, "Declarant told me that he had perceived F." F being the fact said to have been perceived. Here the personal experience of which witness speaks is not the perception of the fact F, but the auditory perception of words uttered by the Declarant. To determine, from the utterance of witness, that Declarant spoke those words, the Trier has to go through certain mental processes, and when he has reached the conclusion that Declarant did speak those words, he has done nothing more than find that Declarant in the presence of witness made a statement of a specified content.
Declarant is not now speaking under oath, subject to a penalty for perjury, at a public hearing in the presence of Trier, and subject to cross-examination by Adversary. Furthermore, none of these conditions existed at the time when Declarant made the utterance. Yet, the Proponent is asking Trier to rely upon Declarant's use of language, his sincerity, his memory, and his perception; and if trier is to find that F occurred or existed, he must treat Declarant in all respects is a Witness. In short, for this purpose, Witness is merely the means of getting to Trier the statement of Declarant, and Declarant is the real witness upon the issue of the occurrence of existence of fact F.
1. Morgan Hearsay Dangers, (1948) 62 Harvard Law Review 177, 178, 179.
26.28. Apart from any other consideration, there is always the weakness of testimony as to oral utterances. One's assertion of what another said is subject to special weakness-the risk of a defective perception of words uttered orally.
26.29. The specific features of weakness in such a case are:-
(i) the perception of the words may be imperfect, either by perceiving words differently from the reality, or by perceiving a part of them only;
(ii) the memory of them may be imperfect;
(iii) the narration of them may be different;
(iv) no data are available for determining which of these is the source of error and for checking possible error.
26.30. Factors to be considered.-
The factors to be considered in evaluating the testimony of a witness are perception, memory, and narration1 Sincerity is, in fact, an aspect of the three already mentioned. Now, in order to encourage the witness to do his best with respect to each of these factors, and to expose any inaccuracies which may enter in, the Anglo-American tradition has evolved three conditions under which witness will ideally be required2 to testify-
(1) under oath,
(2) in the personal presence of the trier of fact, and
(3) subject to cross-examination.
1. (a) Moigan Hearsay Dangers and the Application of the Hearsay Concept, (1948) 62 Harvard Law Review 177; Selected Writings on Evidence and Trial, 764, 765 (Fryer ed., 1957);
(b) Shientage Cross-examinatio.- A Judge's Viewpoint, (1948) 3 Record 12;
(c) Strahom A Reconsideration of the Hearsay Rule and Admissions, (1937) 85 U. Pa. L. Rev. 484, 485; Selected Writings, 756, 757;
(d) Weinstein Probative Force of Hearsay, (1961) 46 Lowa L. Rev. 331.
2. Federal Rules of Evidence Note of the Advisory Committee, 34 Lawyers' Edn. 2d, cli (151)
26.31. These three are no idle formalities. Their object is to bring the truth before the Court. They are not satisfied in the case of hearsay evidence.
26.32. Traditionally, the demeanour of the witness has been believed to furnish the trier and the opponent with valuable clues.1-2 The witness himself will probably be impressed with the solemnity of the occasion and the possibility of public disgrace. Willingness to falsify may reasonably become more difficult in the presence of the person against whom it is directed.3
1. Universal Camera Corp, v. N.L.R.B., (1951) 340 US 474 (495-496): 71 Ct 456: 95 Lawyer Edn. 456.
2. Sahm Demeanour Evidence: Elustve and Intangible Imponderables, (1961) 47 ABAJ 58 quoting numerous cases.
3. Federal Rules of Evidence; Note of the Advisory Committee, 34 Lawyers' Edn. 2 p. cl. (150).
26.33. Hearsay not trustworthy.-
In short, hearsay is excluded because it is considered not sufficiently trustworthy. Where there are special circumstances which give a guarantee of trustworthiness to the testimony, hearsay is admitted, even though it comes from a second hand source.
26.34. Mediate Proof.-
We have referred above to the aspect of mediate proof Certain authors deal with the objection to hearsay as an objection relating to the media of proof. Thayer (and Greenleaf) wrote of hearsay under the heading of "Media of Proof"-an arrangement that has been followed by Wills.1 In Greenleaf's Treaties,2 the excluding rules are dealt with in Part II, "The Rules which govern the Production of Testimony". The argument is that hearsay is rejected because testimony at second hand is not the proper way of proving the particular facts. A cannot be called to prove that B told him as to a certain fact, because A is not the right medium of proof; B is.
1. Baker The Hearsay Rule, (1950), pp. 16-17.
2. Greenleaf, referred to by Baker Hearsay Rule, pp. 16-17.
26.35. Reason.-
Several reasons have been put forth to justify the rule again hearsay evidence. These are-
(a) Dangers arise from the repetition of statements.
(b) Reception of hearsay would result in the undue protraction of trials.
(c) There are possibilities of fraud.
(d) The rejection of hearsay encourages stronger for weaker proofs.
(e) Its exclusion prevents surprise and unfair prejudice to the parties.
(f) Its exclusion prevents the jury from being confused and misled.
26.36. But the most important consideration seems to be the fact that it is second-hand or derivative, and its consequential weakness.
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